Can Olmert run for the top job? The answer is as muddled as his political future

Can Olmert run for the top job? The answer is as muddled as his political future

Forced out of office to fight corruption charges four years ago, convicted of breach of trust and still on trial, Ehud Olmert's potential comeback opens a legal minefield

Raphael Ahren is the diplomatic correspondent at The Times of Israel.

Olmert entering a court room. (photo credit: Miriam Alster/Flash90)
Olmert entering a court room. (photo credit: Miriam Alster/Flash90)

While former prime minister Ehud Olmert mulls whether to challenge once more for the premiership in January’s elections, some legal scholars say it would be exceedingly difficult for him to get legal clearance for the top job due to his various entanglements with the law. Others, though, are not quite so sure.

Olmert is currently eligible legally to run for the Knesset — and theoretically able to compete for the top job — but the High Court of Justice, several experts said, would likely prevent him from returning to the prime ministership because of a recent conviction and an ongoing trial. Others were less definitive, but predicted a complex legal battle were he to become a realistic contender for the prime ministership.

In September, the Jerusalem District Court sentenced Olmert to a suspended year-long jail term and a 75,000 NIS fine for a July breach of trust conviction in the so-called Investments Center case, making him the first Israeli prime minister ever to be convicted in a corruption case.

He was cleared at the time on two more substantive corruption charges — the so-called Rishon Tours and Talansky affairs — in which the state is currently considering whether to appeal. In addition, the 67-year-old is still standing trial in a different corruption case, involving the Holyland real estate scandal.

‘A person who is convicted of an offense involving moral turpitude is not qualified to become a minister or prime minister’

After Olmert renounced all the benefits that come with his status as former prime minister, the Jerusalem District Court abstained from labeling his breach-of-trust crime as one of “moral turpitude,” which would have effectively barred him from seeking political office for the next seven years, according to Mordechai Kremnitzer, who teaches constitutional law at Hebrew University.

“But if Olmert decides to run for the premiership, then the question [of moral turpitude] will be returned to the court,” Kremnitzer said. “And there is a fairly high chance the court will declare this was an offense that carries moral turpitude.”

Such a label would destroy any hopes for an Olmert prime ministerial comeback.

“A person who is convicted of an offense involving moral turpitude is not qualified to become a minister or prime minister,” said Kremnitzer, who also serves as vice president of research at the Israel Democracy Institute. “If Olmert decides to run, the prosecution will ask the District Court of Jerusalem to decide on the question of the moral turpitude of his conviction. If the court’s decision is that this was an offense that carried moral turpitude — and I think it’s pretty likely that this would be the decision — then he would be prevented from running [for prime minister].”

Doron Navot, a Haifa University political scientist specializing in corruption, likewise said it was unlikely that Olmert could become prime minister in 2013. “If he actually dares to present his candidature for prime minister, the High Court of Justice will surely strike it down,” Navot said.

“It doesn’t really make sense to assume that someone who was convicted of a serious crime and is still being investigated over other corruption allegations would seek to become prime minister,” Navot said. “I think he himself realizes that. What is possible, however, is that Olmert might run for the Knesset, to be on stand-by in case his legal cases take a turn for the better.”

According to some analysts, indeed, Olmert knows that his current legal situation would likely prevent him from becoming prime minister or even a lower-ranking minister. But, hopeful that his legal fortunes will change in the coming months — that the state decides not to appeal his acquittals in the Rishon Tours and Talansky cases, that the breach-of-trust conviction is found not to carry a moral turpitude designation, and that he is cleared of all suspicions in the Holyland affair — he wants to be in a position to once more assume a leadership role.

But some other experts consulted by The Times of Israel were less definitive on the legal hurdles to an Olmert comeback, were voters — improbably according to the polls — to put him within reach of the top job in January.

A law preventing an Olmert comeback? It’s complicated.

What does Israeli law say about a person who was convicted of corruption charges — and is still on trial for other corruption charges — seeking to become prime minister?

For Hebrew University scholar Menachem Hofnung, who researches  constitutional politics in Israel, the issue is clear: from a purely legal standpoint, he said, there is nothing that stands in the way of a second Olmert term.

A clear issue? Not everyone shares Hofnung’s assessment.

“This is a constitutional question without an answer, simply because the lawmakers have never thought about such a scenario,” said Suzie Navot, a professor of constitutional law at the College of Management Academic Studies in Rishon Letzion. “These are not issues that people usually think about. Even in the US and Europe they don’t have an answer to this question.”

The situation is indeed somewhat paradoxical: Because of the ongoing Holyland trial, Olmert cannot serve as an ordinary minister, most legal experts say; legal precedent says a minister must step down if he is indicted. However, the law does not explicitly bar him from becoming prime minister, since there is no legal clause and no court precedent for it.

Kremnitzer, the constitutional law scholar, does not believe this loophole could help Olmert. “Of course, what applies to a minister applies a fortiori to a prime minister,” he said. “The fact that he is not a minister now does not change the rationale behind the ruling of the High Court of Justice.”

Suzie Navot was not so certain. The legal system would be asked to intervene, she said, but she was less definitive as regards the likely result.

‘It’s a really absurd situation that the minimum requirements for prime minister are lower than that of a minister. But that’s seems to be the situation sanctioned by law’

“If Olmert can be an MK, according to the wording of the law he can also be the prime minister,” said Suzie Navot, who is also a member of the public committee tasked with preparing an ethics code for the Israeli parliament. And regulations that apply for a minister do not necessarily apply for the prime minister, she argued, as Israeli law has different rules for the two offices.

Either way, a second Olmert prime ministership would certainly have to stand the test of the High Court, she elaborated, “because it would create an absurd situation — that he cannot hold any ministerial posts but can be prime minister? That’s a really absurd situation: that the minimum requirements for prime minister are lower than that of a minister! Still, that’s seems to be the situation sanctioned by law.”

Dafna Kiro-Cohen, the head of the legal department at the Movement for Quality Government in Israel, likewise said that it was safe to assume that the court would scrutinize Olmert’s legal situation before allowing him to become prime minister. “But it’s difficult to assess how they would decide; that would depend on many different factors,” she said.

According to Basic Law: The Government:  The only requirement for the post of prime minister is that the candidate is a member of Knesset. After an election, the president usually asks the MK who leads the largest Knesset faction to try to assemble a government (unless, as was the case in 2009, another candidate has a better prospect of forming a majority coalition). In other words, all that the law asks of a potential prime minister is that he or she is an MK who can build a functioning government. There is nothing about what might disqualify someone from this office.

Since the punishment for Olmert’s breach of trust conviction included “merely” a fine and a suspended prison term, rather than an “actual” jail sentence, he is free to become an MK.

According to Basic Law: The Knesset: The law only bars a person from sitting in the Knesset if he or she “has been convicted, by final judgment, of a criminal offense and been sentenced to a penalty of actual imprisonment for a term of one year or more.”

In theory that also means Olmert could become prime minister if he were to run for the Knesset and if the list he headed would be best positioned to lead the government. Again, though, the legal experts said that theory would be put to the test of the judicial system.

A ministerial post, however, seems out of bounds for Olmert, at least for now, due to the ongoing Holyland trial, in which he is suspected of accepting bribes in the major real estate project during his time as Jerusalem mayor.

Former prime minister Ehud Olmert at the Jerusalem District Court earlier this month (photo credit: Yoav Ari Dudkevitch/Flash90)
Former prime minister Ehud Olmert at the Jerusalem District Court (photo credit: Yoav Ari Dudkevitch/Flash90)

According to a 1993 Supreme Court decision, a person can no longer serve as minister as soon as he or she has been indicted. Once legal proceedings have been initiated, the prime minister is obligated to fire a minister. This is what happened to interior minister Aryeh Deri, who eventually went to jail in 2000 for accepting bribes, and is currently planning his political comeback. That’s also why Avigdor Liberman would lose his post as foreign minister if Attorney General Yehuda Weinstein decided to press charges against him in a long-standing corruption investigation.

Still, even in this apparently clear-cut aspect of his complex legal status, Olmert may have a counter-argument. Unlike Deri, he would not be served an indictment while already a minister; he would be seeking to become prime minister while already indicted. Perhaps, it could be argued, the 1993 Supreme Court ruling does not not therefore apply.

Olmert’s opponents may yet try to keep him out of the Knesset altogether. Likud MK Tzipi Hotovely has already filed a petition to the Knesset’s Central Elections Committee, arguing that Olmert should not be allowed to run because of his past misdeeds, and that he should be disqualified because of his alleged “moral turpitude.”

Michael Partem, a lawyer and vice chairman of the Movement for Quality Government in Israel — that opposes an Olmert comeback on ethical grounds, even if it were technically legal — said the head of the Central Elections Committee has the right to consider Olmert’s conviction as carrying moral turpitude and bar his candidacy.

Jerusalem District Prosecutor Eli Abarbanel at the district court in Jerusalem, in December 2011. Abarbanel called for moral turpitude to be included in the verdict against former PM Ehud Olmer. (photo credit: Yossi Zamir/Flash 90)
Jerusalem District Prosecutor Eli Abarbanel, who initially called for moral turpitude to be included in the breach-of-trust sentence against Olmert. (photo credit: Yossi Zamir/Flash 90)

Suzie Navot, the constitutional law professor, said that were the voters to elect Olmert to lead the country, it would not be a simple matter for the court to overturn the public’s decision. “I’m not saying it’s impossible, just that it’s not at all easy to do. It’s easier to obligate the prime minister to fire a minister than it is to tell the Knesset they can’t approve Olmert’s government, or to tell the public that they can’t elect him. What’s needed from the court is to answer a constitutional question that is of profound importance.”

Olmert stepped down as Kadima party leader and prime minister — prompting the 2009 elections that brought Prime Minister Benjamin Netanyahu to power — in order to fight a welter of corruption allegations, first of all in the Talansky affair, a case in which he was acquitted. That fact has prompted some of his supporters to argue that a failed legal process forced out a democratically elected prime minister in what amounted to a legal coup.

Currently, Olmert is said to be looking at public opinion surveys to gauge whether he would have a realistic chance of regaining the prime ministership. At the same time, however, he has asked Bar-Ilan University law professor Ariel Bendor to write a legal opinion on his eligibility for the top office, given his legal travails. According to a Channel 10 report, Bendor would argue that the 1993 High Court decision barring a a person currently on trial from serving as minister only applies to incumbents. Since Olmert currently does not hold any ministerial posts and would be elected by the people again, after an indictment against him had been served, the court ruling does not affect him, Bendor is said to believe.

It may be Bendor’s conclusions, as much as the survey results, that determine whether Olmert decides to bid again to become Israel’s prime minister. Then, all the legal theorizing will take on critical practical importance.

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